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Criminal Appeals in Virginia can be a confusing, lonely and way too long process for any Defendant who had the misfortune of losing a criminal case. Here is a BASIC overview of the process.

Appeal for a Trial De Novo

When a person gets convicted in the lower trial courts in Virginia (Juvenile Domestic Relations Court and General District Court) and the case has become final (not a defered disposition) that person has the right to Appeal his case to the higher trial court, the Circuit Court. The trial is called De Novo, because you will have a whole new trial as if the first trial never happened. The time limit is for an Appeal in this circumstance is within 10 days of the conclusion of the original case.

Appealing to the Court of Appeals

If a person loses a trial in the Circuit Court that person has the right to Appeal to the Court of Appeals of Virginia. That request for an appeal must be filed within 30 days of the final order in the Circuit Court. After 30 days a person will lose the right to appeal.

Filing a Petition in the Court of Appeals

Well, if you have an attorney he must request the record of the Circuit Court trial be sent to the Court of Appeals. That would include the creation of a transcript and the Circuit Court Clerk will send the record up to the Court of Appeals. When the record is recieved the next step is to write a Petition asking for the Court to Grant the Petition and hear the Appeal. The attorney has 40 days to write the Appeal. Now an Appeal to the Court of Appeals is NOT a new trial, but rather a request for the Court of Appeals to address any error in the trial down in the Circuit Court. Errors must be such that they effect the trial to your harm. The Court of Appeals will not second-guess what a trial judge or jury believed, and will not hear new evidence. The Court of Appeals will hear legal arguments based on the rulings and outcome of the trial.

What happens with the Petition?

Well the Court of Appeals can grant or deny the petition. If the Court grants the petition it does not mean that you’ve won the Appeal but rather that they will hear the case and decide the merits of the Appeal.

What happens if the Court of Appeals denys the petition for Appeal?

The Appeal is not over, but rather the Attorney can ask for a 3-judge panel to try again. He must request this within 14 days of the denial of the petition. After all the avenues have been extinguished and the Court of Appeals has denied the petition then you may then Appeal to the Supreme Court of Virginia.

So the Court of Appeal has granted the petition, what now?

The attoreny will write a brief (a paper based on his petition argument) and will argue in front of three judges of the Court of Appeals who will then decide the case. One of the three judges will write a opinion which lays out their ruling on the case based on the argument they have heard and the laws of Virgina. Depending on the circumstances they can remand the case for a new trial, reverse the case completely or rule that there was nothing wrong with the trial and that the convictions stand. If they do not rule in your favor then you may then Appeal to the Supreme Court of Virginia.

Why is it taking so long?

Well the answer to that is that there are time-limits that are triggered after every step of the process, waiting for the transcripts and record, writing the petition, waiting for the Commonwealth’s response, waiting on the Court of Appeals to set oral argument, waiting for the decision as to whether they will grant or deny the petition, if they deny waiting on them to look again with a 3-judge panel, if granted waiting on creating a brief, waiting on oral argument, and finally waiting for a decision (and we’re just talking about the Court of Appeals stage!) The Court of Appeals also works at its own pace and will not be rushed.

Can I go it alone?

You could, but it is such a rigid and technical process that an attorney would be essential. If any deadline is missed, or if the format is incorrect the Appeal can fail on technical grounds.

If you have been charged with a misdemeanor, traffic ticket, or county code violation that can be tried in any General District Court or Juvenile and Domestic Relations Court in Virginia, (anything punishable up to 12 months or less, or fine-able offense as compared to a felony), you have the automatic right of appeal to the Circuit Court, if you wish.

What exactly does that mean? Well since the lower courts in Virginia are considered Courts not of record (they do not have a court reporter) then if you lose your case, or do not like the result then you can appeal it to the Circuit Court and have a trial de novo. A trial de novo, means that whatever happened in the lower court does not matter and you can have a whole new trial.

But there are very strict time limits that must be followed. You would have ten (10) days to note your appeal in the Lower Court, declaring your desire to appeal to the Circuit Court. If it has been more than the ten (10) days then you lose your right to appeal.

If you do appeal to the Circuit Court, at some point you will get a new trial date. That new trial date would happen in the Circuit Court in front of a Circuit Court Judge. Or if you desire, you can set the appeal for a Jury trial. (The Prosecutor, or the Judge could request a jury as well). If you chose a bench trial, and most people do because a Jury may be too costly (the defendant would have to pay the costs for a jury if they are found guilty and they were the ones who asked for it). Also Jury’s tend to take a long time to do as compared to a bench trial. But, you can only have a Jury trial in Circuit Court, never in the General District Court or Juvenile and Domestic Relations Court.

A misdemeanor jury has 7 jurors (as compared to 12 for felonies). All 7 must find beyond a reasonable doubt that a person is guilty for a conviction, or all 7 must find a not guilty verdict for an acquittal. If the jurors cannot decide then they may be declared a hung jury by the Judge and the case could be tried again at a latter date.

If a person chooses to appeal the decision of the General District Court they have a couple of options. As soon as a person appeals to the Circuit Court, the decision of the General District Court is lifted. So if you were incarcerated then you would be released depending on whether the General District Judge requires additional bond or not, and you would not have to pay any fines or costs, or lose your license, until the case is heard again. The Defendant who appeals his case can withdraw the appeal within 10 days after the original trial date and then receive the exact same punishment that he originally received. The sentence would automatically kick right back in once the appeal is withdrawn.

After the ten (1o) days the Defendant can still withdraw the appeal on or before the new trial date in Circuit Court. But at that point as well as receiving all of the original punishments from the General District Court, the person would have to pay additional court costs from the Circuit Court.

Appealing a misdemeanor case from the General District Court or the Juvenile and Domestic Relations Court is a valuable tool for a defense attorney or a defendant to try a case again or in just delaying the outcome of a case. If someone wishes to appeal a case, (unless a Defendant waived his appeal rights by agreement with the Commonwealth Attorney), then withdraw the appeal at a latter date and take the punishment they got in the lower court, they can. (the biggest downside would be an increase in Court Costs, because you would half to pay the General District Court Costs and the Circuit Court Costs.) The person could also have a whole new trial, with a judge or a jury, get a better outcome, a worse outcome, or a similar outcome as they got down in the lower court.

So lets take an example: Say Mary get’s charged with a first offense DUI with a BAC of over a .15. A BAC with over a .15 means that the person would be facing a five (5) day mandatory minimum jail sentence if they get convicted. Say Mary hires an attorney and has a trial in the General District Court. The General District Judge finds Mary guilty after a trial and sentences her to 60 days in jail with 55 days suspended leaving the five (5) day mandatory minimum to serve. She loses her license for 12 months, must pay a $350 fine, court costs, and must do the ASAP class.

Mary doesn’t like the outcome, and doesn’t want to go to jail. She, with her attorney, notes her Appeal to the Circuit Court. Her attorney asks the General District Judge to allow her to remain out on her same bond, the Judge agrees. So, because the case is now on appeal, none of those punishments exists. Mary doesn’t have to go to jail that day, doesn’t have to pay her fine or court costs, can still drive, and doesn’t have to go to the ASAP classes. Not yet at least.

Mary gets a new court date two months down the line. The Prosecutor asks the case to be set with a jury. At some point before the trial, Mary and her attorney talk about whether they want to risk having a whole new trial or not. Mary gets worried that a jury may punish her more than what she originally received. Mary decides not to take the risk and withdraws her appeal before the new trial. At that point all of the original punishments are back in place. Mary has to spend five (5) days in jail, loses her license, has to pay the fine, and sign up for the ASAP classes. She also would have to pay additional court costs for the appeal, so not only the General District Court Costs, but the Circuit Court costs as well.

Now Mary could have gone to trial, and maybe been found Not Guilty, or she could have been found Guilty and received a worse sentence. If she had gone to trial and lost, then she and her Attorney could talk about whether they wished to Appeal to the Court of Appeals of Virginia, but that is a completely different process, that works in a different way.

So, you or a loved one has been charged with a felony charge in Virginia. What is the process like? Well, it can be a long one spanning many months. Now a felony is defined in Virginia as any charged punishable over a year in jail, anything punishable by 12 months or less is a misdemeanor. It is not what a person ultimately receives as punishment but rather the overall potential punishment that distinguishes between a felony or misdemeanor.

Firstly, a felony charge or charges can be initiated in two basic ways. Most common is through a warrant issued by a Magistrate on behalf of a police officer. The second is by direct indictment (which is to bring the charge not by warrant but by indictment in the Circuit Court, this would bypass the General District Court altogether).

Most likely the charge will begin at the Magistrate’s office. If a citizen is complaining about felonious conduct, the Magistrate cannot issue a felony warrant just on a citizen’s word unless the Magistrate gets the go ahead from a police officer or from a Commonwealth Attorney (unlike misdemeanors when a Magistrate can issue a warrant based solely on a citizen’s oath). If the Magistrate issues a felony warrant, the next step is arresting the individual charged.

It is always better if a person knows that a felony warrant is outstanding to go ahead and turn themselves in to the Magistrate’s office. It is always disruptive and scary to have an police officer come find you. A person may not have a choice, either because they do not know there is an outstanding warrant, or because they get arrested at the time the charges happen. But, if you can turn yourself in it usually is a mark in your favor in terms of both receiving bond and the timing of the arrest.

After arrest, the Magistrate will determine bond, now the two determining factors in Virginia regarding bond is whether the individual is a risk of flight or a danger to the community. Some charges, usually violent charges, have an initial presumption against bond and a Magistrate will hold the individual until they have the opportunity to get in front of a Judge. If the magistrate denies bond, either because of a person’s past or risk factors, or because the charge carries a presumption against bond, or even if the bond is too high for an individual to make, then they will be on a video arraignment the next day the General District Court (or Juvenile and Domestic Relations Court) is in session. (So if you get arrested or turn yourself in on a Friday and the Magistrate denies bond, you wouldn’t be able to see the Judge until that Monday, if court is in session).

At the video arraignment, the Judge will ask the individual what they want to do about an attorney. By definition a felony carries a potential of a jail sentence, so a person can see if they qualify for court-appointed counsel (which depends if they meet the state guidelines as to whether the financially qualify for a court-appointed attorney) , tell the Judge they wish to hire counsel, or represent themselves. (It is never wise to represent yourself on a felony, the process is too complicated, the rules of court and evidence are too tricky to handle, and the consequences can be life-altering to the point that no one should proceed without an attorney.)

They Judge will also review the individual’s bond status reviewing the same factors as the Magistrate (are you a risk of flight or a danger to the community). Unlike at the Magistrates office, at the video arraignment the Commonwealth’s Attorney will be present to give the Judge input on whether bond should be granted based on their point of view. If you a proactive enough and have hired an attorney beforehand, the attorney can argue on your behalf at a video arraignment for bond.

If the Judge denies bond at the video arraignment, an attorney can set a bond hearing and argue again (that usually can be set fairly quickly but still could take a couple of days to schedule). If the Judge still denies bond, the attorney can appeal the decision to the Circuit Court. The Circuit Court can review the bond decision again after a hearing.

After the video arraignment and bond hearing (if necessary) the next court date in the General District Court (or Juvenile Domestic Relations Court) will be a preliminary hearing. At the preliminary hearing the Commonwealth’s Attorney must present enough evidence (not all the evidence they have, but as much as they feel they tactically need to get the charge certified to Circuit Court), to convince the General District Judge that there is sufficient Probable Cause (probably a crime was committed and probably this was the individual that committed it) to certify the case to the Circuit Court.

Tactically, at a preliminary hearing defense counsel is more interested in finding out the Commonwealth’s evidence, and hearing the accusers under oath, than by putting forth a complete defense. A preliminary hearing is like a mini trial, but most defense attorneys would never put on any evidence because the preliminary hearing is not a trial, but merely a determination of whether the charge should go up to Circuit Court and they do not wish to open their witnesses up to cross examination unless it is an actual trial.

Now the Defense can actually win a preliminary hearing if the Judge feels that the evidence is insufficient to establish probable cause for the charges before the court. But the Commonwealth has the right to bring the charge back anyway, by direct indictment in the Circuit Court. Which would mean the individual charged would be arrested again at some later time. So, for most defense attorneys the goal is not necessarily to keep the charge from being certified but rather to find out the Commonwealth’s evidence, so they can adequately prepare for a trial down the road. The individual charged also has the right to waive his preliminary hearing, and that is done usually because there have been some negotiations for a resolution to the case.

After a charge has been certified or if the preliminary hearing was waived, the case then is transferred up to the Circuit Court. The first hearing date in the Circuit Court will be the Grand Jury. Grand Jury is when a panel of citizens from the county, who meet certain requirements, hear the evidence behind closed doors from the police officers and they decide whether there is Probable Cause (the same standard as the preliminary hearing.) They essentially change the warrant to an indictment and the charge is officially in Circuit Court. Defense Counsel and the individual charged have no right to hear what happens in the Grand Jury room, it is a closed door session. The Grand Jury is also the time when the Commonwealth’s Attorney can bring more charges if they see fit.

If a charge starts at the Grand Jury stage as a direct indictment, an arrest warrant will be issued by the Circuit Court, and once the individual has been arrested or turns themselves in there will be an video arraignment, or hearing date to determine counsel just like if the charge had started by a warrant down in the General District Court. The main difference is that there would be no preliminary hearing and the charge would skip the lower court proceedings altogether. Commonwealth’s Attorneys usually use the Direct Indictment process tactically as to avoid a preliminary hearing (but there can be many reasons for it). Most cases though, start by warrants in the General District Court.

After Grand Jury, they case is usually set for an arraignment (though some Circuit Courts may skip this step and do it on the same day as trial). This arraignment is much more formal than the video arraignment to determine counsel or to determine bond. At the Circuit Court arraignment, the individual is formally advised of his charges, is read some rights, is asked to make a plea to the charges (usually not guilty at an arraignment) and must make the decision as to whether he wishes a bench (or Judge) trial or a jury. The case will be set with a jury if the individual charged asks for a jury, if the Commonwealth’s Attorney asks for a jury, or even if the Judge asks for a jury. If you ask for a jury and you lose the case then you will have to pay for the jury. It depends on the type of case and the jurisdiction as to whether the Commonwealth’s Attorney or Judge would request a jury, mostly it is the decision of the individual charged. Sometimes if there is a resolution worked out, the case could be set, not for trial, but for a plea on some future date.

After the arraignment, the case is set for trial. There may be some more hearings in between the arraignment and trial, such as motions to suppress evidence. The case then goes to trial, with a jury or with the Judge. If the case is before a jury, the jury must be unanimous in its decision as to guilt (all 12 vote guilty, or all 12 vote not guilty) If they are not unanimous then it is called a hung jury, and the case can be tried all over again on another day with another jury. If they jury convicts (all 12 agree that there is sufficient evidence for guilt beyond a reasonable doubt) then the jury fixes punishment after a sentencing hearing usually on the same day the jury pronounces guilt. A Judge can later review the punishment the jury gives, but does not have to change it at all. The Judge cannot extend the punishment but could suspend some or all of the active time given. Juries are usually very good with the idea of guilt beyond a reasonable doubt, but they are very unpredictable as to punishment. Some people prefer a Judge trial because they can be more predictable than a Jury. The decision as to which you choose should be discussed and thoughtfully considered after speaking with your attorney, because it may depend on the type of case, the jurisdiction, the judge, etc.

If a person pleads not guilty and goes to trial and is found guilty, they have a right to appeal to the Court of Appeals, then the Virginia Supreme Court, and in certain cases (though rarely) all the way up to the Supreme Court of the United States. If an individual pleads guilty by agreement, they probably would waive the right to appeal. Appeals are based on legal arguments about what happened at trial, not on whether the Judge or jury was right or wrong in who they believed. Arguments such as certain evidence was improperly admitted, the judge made wrong legal rulings, etc. An appeal is not a new trial, though depending on the arguments, a new trial could happen if the Appellate Court sends the case back to the Circuit Court. Also, depending on the arguments on appeal, the case could be overturned completely without a new trial.

Hello. Here is the second attempt at this blog. My name is John D. Mayoras and I am a criminal defense attorney. The purpose of this blog will be to try to share my thoughts about the state of Criminal Law in Virginia as well as to give, hopefully, some helpful advice.